UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-20581

KENNETH DWAYNE DUNN,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

December 2, 1998

Before POLITZ, Chief Judge, KING and JONES, Circuit Judges.

POLITZ, Chief Judge:

Kenneth Dwayne Dunn, a Texas death row inmate, appeals the denial of his 28

U.S.C. § 2254 petition for habeas corpus. For the reasons assigned, we affirm.

BACKGROUND

In 1980 Dunn was convicted of capital murder and sentenc ed to death for1 For a full recitation of the facts of the offense, see Dunn v. State

, 819 S.W.2d

510 (Tex.Crim.App. 1991) (en banc).

2 Dunn v. State , 733 S.W.2d 212 (Tex.Crim.App. 1987) (en banc).

2 shooting a bank employe e during the commission of a bank robbery. 1 On April 8,

1987, Dunn’s conviction was reversed by the Te x as Court of Criminal Appeals because

the record on appeal lacked a complete statement of facts. 2 Dunn was again convicted

and sentenced to death in a second trial in 1988.

Prior to the first trial, the court ord ered Dunn to undergo a psychiatric

examination. He was examined by Dr. Charles Covert who concluded that Dunn was

sane at the time of the offense and competent to stand trial. Robert Hunt and Reuben

Guerrero were appointed to represent Dunn. While Dunn’s appeal of the first trial was

pending, he filed a malpractice suit against Hunt and Guerrero. That suit was dismissed

as frivolous in 1985.

In 1987, p rior to the second trial, Dunn requested that he be appointed cocounsel with Hunt and Guerrero. When the court informed Dunn that he had no right

to hybrid representation, he insisted that he wanted to proceed pro se

. After a lengthy

colloquy, the court granted Dunn’s motion for self-representation and appointed Hunt

and Guerrero as standby counsel. Dunn objected to this appointment, claiming that

Hunt and Guerrero had refused to argue the insanity defense at his first trial; the court3 Dunn v. State

, 819 S.W.2d 510 (Tex.Crim.App. 1991) (en banc), cert. denied

, 506

U.S. 834 (1992).

3 overruled this objection.

At a pretrial hearing ten days later, Dunn asked to have counsel appointed. The

court granted the request and reappointed Hunt and Guerrero. Dunn again objected to

their representation contending that Hunt and Guerrero “have refused in t he past to

cooperate with the defendant in presenting the defense he wishes to present,” that he

did not trust that Hunt had his best interests in mind because of an argument wherein

Hunt said “to hell with you” and picked up an umbrella and ashtray as if to strike Dunn,

and be cause he had filed a malpractice suit against Hunt and Guerrero after the first

trial. The district court denied Dunn’s request that Hunt and Guerrero be dismissed and

that Jack Zimmerman and Percy Foreman be appointed in their place.

Approximately six months later, Dunn filed a motion for sel f-representation.

After a hearing, the court granted the mo tion and reminded Dunn of the dangers and

disadvantages of self-representation. Dunn proceeded to trial p ro se with Hunt and

Guerrero as standby counsel. He again was convicted of capital murder and sentenced

to death, and the conviction and sentence were affirmed on direct appeal. 3

Dunn petitioned for a writ of habeas corpus in state court. The trial court entered

factual findings and legal conclusions, r ecommending that relief be denied, and the4 Ex Parte Dunn , No. 24, 263-01 (Tex.Crim .App. 1992).

5 Dunn filed his habeas pe tition prior to the effective date of the AEDPA. His

application for a COA should have been construed as an application for a certificate of

probable cause. L indh v. Murphy

, 521 U.S. 320 (1997). Nevertheless, the standards

for issuing a CPC and the AEDPA-required COA are identical. S ee Lucas v. Johnson

, 132 F.3d 1069 (5th Cir. 1998), cert. dismissed

, No. 97-9463, 1998 WL 313489 (U.S.

July 17, 1998); Muniz v. Johnson

, 1 32 F.3d 214 (5 t h Cir.), cert. denied

, 118 S.Ct.

1793 (1998). The district court granted a COA for the following issues:

1. Whether Dunn was denied his fourteenth amendment right to due process

because he was mentally incompetent to stand trial; and

2. Whether Dunn was denied his sixth amendment right to counsel because his

waiver of the right was not knowingly and intelligently made.

6 We granted a COA for the following issues:

1. Whether Dunn was denied due process of law in violation of the fourteenth

amendment because he was deprived of a hearing on his mental competency to stand

trial;

2. Whether Dunn was denied the assistance of counsel in violation of the sixth

and fourteenth amendments when he was forced to re present him self as the only

alternative to continuing with disqualified court-appointed counsel;

3. Whether Dunn was denied the assistance of counsel in violation of the sixth

and fourteenth amendments because the trial court f ailed to conduct an adequate inquiry

4 Texas C ourt of Criminal Appeals denied the writ on the basis of the trial court’s

findings. 4

Dunn then filed the instant federal habeas petition under 28 U.S.C. § 2254. The

state answered and moved for summary judgment. The district court granted the

motion and denied habe as relief. Dunn appealed and the district court issued a

certificate of appealability on two of the issues raised. 5 He requested a COA from this

court on the remaining issues; we granted same. 6regarding his objection that court-appointed counsel were disqualified;

4. Whether Dunn was denied due process of law in violation of the fourteenth

amendment because he was mentally incompetent to waive his right to counsel;

5. Whether Dunn was denied due process of law in violation of the fourteenth

amendment because the trial court failed to conduct an adequate inquiry into his mental

competency to waive his right to counsel; and

6. Whether Dunn was denied due process of law in violation of the fourteenth

amendment because the trial court denied his motion for a psychiatric expert to assist

him in preparing his defense.

7 28 U.S.C. § 2254(d) (1988); Williams v. Scott , 35 F.3d 159 (5th Cir. 1994).

8 Cooper v. Oklahoma

, 517 U.S. 348 (1996); Washington v. Johnson, 90 F.3d

945 (5th Cir. 1996); Bouchillon v. Collins , 907 F.2d 589 (5th Cir. 1990).

5 ANALYSIS

Dunn raises eight grounds for relief, all of which relate either to his competency

to stand trial, the validity of his waiver of counsel, or the trial court’s refusal to appoint

a psychiatric expert to assist in the preparation of his case. In reviewing the grant of

summary judgment in a habeas case, subject to certain exceptions, we must presume

that the state court findings of fact are correct. 7

A. Mental Competency

Dunn asserts that he was mentally incompe tent to stand trial and that the trial

court failed to conduct an adequate inquiry. Due process prohibits the prosecution of

a defendant who is not competent t o stand trial. 8 A defendant is deemed mentally

competent when he has the “present ability to consult with his lawyer with a reasonable9 Dusky v. United States

, 362 U.S. 402 (1996); Lokos v. Capps

, 625 F.2d 1258,

1261 (5th Cir. 1980).

10 Enriquez v. Procunier , 752 F.2d 111, 113 (5th Cir. 1984).

11 Thompson v. Blackburn , 776 F.2d 118 (5th Cir. 1985).

6 degree of rational understanding” and “has a rational as well as factual understanding

of the proceeding[] against him.” 9 Additionally, a trial court has a duty to hold a

competency hearing when “the objective facts known to the trial court [are] sufficient

to raise a bona fide doubt as to [the petitioner’s] competency.” 10

Dunn contends that the trial court had an abundance of information which should

have raised serious doubts about his competency and, as a result, the trial court was

under a duty to hold a hearing to determine his competency. In determining whether

to grant a competency hearing, the trial court is to co nsider any history of irrational

behavior, defendant’s bearing and demeanor in court, and prior medical opinions. 11

Dunn maintains that the trial records reflect that he had a delusional belief that

all connected with his trial, particularly his attorneys, were involved in a conspiracy

against him. During the course of his two trials, both of which were before Judge

Charles Hearn, Dunn claims that it should have been apparent that his hostility, distrust

and suspiciousness were not matters of temperament but, rather, were the product of

a disturbed mental condition. Dunn’s behavior during the first trial was so disruptive7

that the court had him removed from the courtroom several times. Dunn often refused

the advice of his standby counsel, and the prosecutor and standby counsel both

requested competency hearings before his second trial.

The state habeas court, however, found that at no time did the trial court observe

or become aware of any irrational behavior by Dunn sufficie nt to raise a bona fide

doubt as to Dunn’s competence. The trial court had the benefit of having observed

Dunn’s demeanor and behavior in the first trial; the report of Dr. Covert, which made

a specific finding of competency to stand trial; the reports of Texas Correctional

Officials who had observed Dunn over the course of several years; and observations

of and interactions with Dunn throughout the course of the second trial. Dunn lobbied

persistently and articulately to exercise his right to self-representation. The trial court

also had the report of Dr. Covert which observed that Dunn was “familiar with legal

terminology and [knew] the workings of the court system far better tha n the average

individual.” Dunn has failed to offer proof sufficient to rebut the state habeas court’s

finding that his demeanor and performance at his second trial demonstrated that he had

a rational and factual understanding of the proceedings against him, and that he could

have consulted with a lawyer with a reasonable degree of rational understanding.

To obtain habeas relief based on incompetency in fact, Dunn must show that the

facts are “sufficient to positively, unequivocally and clearly generate a real, substantial12 Washington v. Johnson

, 90 F.3d 945, 950 (5th Cir. 1996); Bruce v. Estelle

,

536 F.2d 1051, 1058-59 (5th Cir. 1976).

13 The affidavits of all three doctors were procured in December 1992 for Dunn’s

state habeas proceeding.

8 and leg i timate doubt” as to his mental competency at the time of trial. 12 Dunn’s

evidence of incompetency includes the affidavits of Doctors Rich ard G. Dudley, J.

Randall Price, and Jon Morton Aase. 1 3 Based on clinical interviews, psychological

testing and a review of Dr. Covert’s 1980 evaluation, Doctors Dudley and Price state

that Dunn suffered from “paranoid delusional disorder” and “ borderline personality

disorder” during both trials which made him chron ically paranoid, suspicious, and

incapable of trust. Dr. Dudley concluded that Dunn’s “Paranoid Delusional Disorder,

with its persistent persecutory delusions, rendered [him] incompetent to stand trial in

1988.” Likewise, Dr. Price concluded that Dunn’s mental illnesses “rendered him

incapable of consulting with an attorney.”

Similarly, after reviewing Dunn’s p sychological, medical and prison records, and

information conce rning the alcohol intake of Dunn’s natural mother during her

pregnancy, Dr. Aase concluded t h at gestational alcohol exposure “resulted in

significant and irreversible damage to [Dunn’s] central nervous system. ” Dr. Aase

concluded that Dunn’s fetal alcohol effects and his psychiatric disorder substantially

impaired his ability to consult with his attorneys.14 The state court also found that Dunn was afforded the opportunity to factually

develop his claim of incompetency.

9 As noted above, prior to his first trial Dunn was examined by Dr. Covert who

presciently observed and concluded that Dunn “is able to confer with and cooperate

with his defense attorneys and can be expected to do so unless he determines that by

refusing to, or by being generally disruptive in the co urtroom, he will inject

uncertainties and confusion to the point that he might not be ultimately held accountable

for his illegal acts.”

T he state habeas court entered findings of fact concluding that the affidavits

offered by Dunn were not credible because th e y failed to acknowledge the difficulty

of conducting a retrospective evaluation spanning several y e ars, are either not based

on an actual interview or did not recite the date of that interview, and conflicted with

the findings of the mental health experts at the Texas Department of Criminal Justice,

Institutional Division, who observed and exam ined Dunn on numerous occasions

between 1980 and 1988. The state court found that Dr. Covert was neutral and that his

evaluation wa s credible. Dunn has not offered any evidence to rebut the state court

findings of fact; he has failed to persuade t hat he is entitled to relief based on

incompetency. 14

B. Waiver of the Right to Counsel15 McCaskle v. Wiggins

, 465 U.S. 168, 173 (1984); see also Faretta v.

California , 422 U.S. 806 (1975).

16 Faretta

, 422 U.S. at 835 (quoting Adams v. United States ex rel. McCann

, 317 U.S. 269, 279 (1942)).

10 Dunn asserts that his wai v er of assistance of counsel was not knowing,

intelligent, and voluntary; therefore his self-representation violated the sixth and

fourteenth amendments. Specifically, he claims that his colloquy with the trial court

concerning self-representation was constitutionally inadequate to support a knowing

and intelligent waiver and that his election to proceed pro se was not voluntary because

o f a conflict of interest with his attorneys. Additionally, he contends that he was

mentally incompetent to waive his right to counsel. These allegations do not provide

a basis for habeas relief.

An “accused has a Sixth Amendment right to conduct his own defense, provided

only that he knowingly and intelligently forgoes his right to counsel and that he is able

and willing to abide by rules of procedure and courtroom protocol.” 15 The defendant

“should be made aware of the dangers and disadvantages of self-representation, so that

the record will establish that ‘he knows what he is doing and his choice is made with

his eyes open.’” 16

The record establishes that before the second trial Dunn was informed of his

right to counsel and warned of the da ngers and disadvantages of self-representation.17 Richardson v. Lucas , 741 F.2d 753, 757 (5th Cir. 1984).

11 The trial court advised Dunn that it was not in his best interest to represent himself, that

litigation of defenses and trial issues requir ed a degree of skill and training not

ordinarily possessed by lay persons, and that self-representation might prejudice his

case to such an extent that an attorney might not be able to overcome the damage in the

future. In addition, Dunn was specifically admonished that he would be expected to

follow technical rules of procedure and evidence and that he would receive no special

considerations becaus e of his lack of legal ability and legal training. The court and

counsel also questioned Dunn about the impending litigation. Dunn’s responses reflect

that he had a general knowledge of the order of the proceedings, how to conduct voir

dire, how to do legal research, and how to prepare for trial. Further, he had the added

experience of having experienced both the guilt/innocence and the punishment phases

of his first trial.

Dunn next contends that he was forced to make the constitutionally repugnant

c hoice between representation by disqualified court-appointed counsel and selfrepresentation, making his waiver of the right to counsel involuntary. “A defendant’s

refusal without good cause to proceed w ith able appointed counsel constitutes a

voluntary waiver of that right.” 17 Dunn asserts that his counsel were disqualified

because they had conflict of interests as a result of the malpractice suit he filed against18 Godinez v. Moran , 509 U.S. 389 (1993).

12 them, and because frict ion and animosity had occasioned a complete breakdown of

communication. The record does not support Dunn’s contention that a conflict or a

complete breakdown in communications existed. Dunn’s malpractice suit against Hunt

and Guerrero had been dismissed as frivolous three years before his second trial and

the pretrial record is replete with instances of Dunn conferring with counsel. We are

persuaded that Hunt and G u errero were not constitutionally inadequate and that the trial

court did not have a duty to inquire any further into Dunn’s objections.

Dunn also contends that he was not competent to waive the right to counsel. The

level of competence required to waive the right to counsel is the same as that required

to stand trial. 18 As we hold above, Dunn was competent to stand trial. It necessarily

follows that he also was competent to waive the right to counsel.

C. Denial of Court-Appointed Psychiatrist

Dunn’s final claim is that his right to a fair trial was violated because the court

refused to appoint a psychiatrist to assist in preparing his case. Due process requires

that the State “assure the defendant access to a competent psychiatrist who will

conduct an appropriate examina t ion and assist in evaluation, preparation, and

presentation of the defense” if the defendant makes a preliminary showing that his19 Ake v. Oklahoma , 470 U.S. 68, 83 (1985).

13 sanity at t he time of the offense is likely to be a significant factor at trial. 1 9 Prior to

Dunn’s first trial the trial court appointed Dr. Covert to evaluate Dunn to determine

whether he was sane at the time of the offense. Dr. Covert concluded that Dunn “was

criminally responsible at the time of the robbery at the Alameda Bank during which he

killed a young woman.” Further, Dunn withdrew his notice of intent to claim insanity

prior to his second trial. The state habeas court found that Dunn had failed to make a

preliminary showing t h at his sanity would be a significant factor at his second trial.

The trial court was not constitutionally required to appoint another psychiatrist to assist

Dunn.

The judgment appealed is AFFIRMED.